WT/DS108/RW2
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ANNEX B
SECOND SUBMISSIONS OF THE PARTIES
Annex B-1
Annex B-2
Contents
Second Written Submission of the European Communities
Second Written Submission of the United States
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B-2
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WT/DS108/RW2
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ANNEX B-1
SECOND WRITTEN SUBMISSION OF THE
EUROPEAN COMMUNITIES
(16 June 2005)
TABLE OF CONTENTS
Page
I.
INTRODUCTION.............................................................................................................. B-3
II.
LEGAL ARGUMENT ....................................................................................................... B-3
A.
INTRODUCTION ............................................................................................................... B-3
B.
WHETHER THE UNITED STATES MAY MAINTAIN THE ETI SCHEME ................. B-3
1.
The DSB adopted rulings concerning the ETI scheme ................................................... B-4
2.
Article 4.7 of the SCM Agreement ................................................................................... B-4
C.
WHETHER SECTION 5 OF THE ETI ACT IS WITHIN THE PANEL’S
TERMS OF REFERENCE .................................................................................................. B-6
III.
CONCLUSION .................................................................................................................. B-7
WT/DS108/RW2
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I.
INTRODUCTION
1.
The US First Written Submission in this proceeding does not call for a long reply on the part
of the European Communities.
2.
The United States has not contested the substance of the EC claims. It does not argue that the
JOBS Act is WTO-compatible in respect of any of the claims advanced by the European Communities
(although it makes certain unsubstantiated and irrelevant assertions as to the "understanding" by the
US Congress and others about the "EC’s concerns" on which the European Communities will not
comment further).1 Rather, the United States confines itself to raising two procedural arguments. As
demonstrated below, those arguments are without merit and should be dismissed.
3.
The European Communities will first examine the US argument according to which, in the
absence of a recommendation under Article 4.7 of the SCM Agreement expressly addressing the ETI
Act, the United States can keep the transition and "grandfathering" provisions of the JOBS Act in
force. It will then turn to the United States argument that section 5 of the ETI Act is not before the
Panel.
II.
LEGAL ARGUMENT
A.
INTRODUCTION
4.
The United States does not contest the substance of the EC claims. In particular it does not
contest that, by partially maintaining in force the ETI Act and the FSC provisions, even after the
promulgation of the JOBS Act, it continues to violate a number of obligations which it has under the
WTO Agreement (specifically, under Articles 3.1(a) and 3.2 of the SCM Agreement, Articles 10.1, 8
and 3.3 of the Agreement on Agriculture, and Article III:4 of the GATT 1994).2
5.
The United States also does not contest the violation of Articles 19.1 and 21.1 of the DSU.
B.
WHETHER THE UNITED STATES MAY MAINTAIN THE ETI SCHEME
6.
The focus of the US procedural defence is the extraordinary proposition that
in the absence of any recommendation or ruling of withdrawal under Article 4.7, this
Panel cannot find that the United States has failed to comply with a DSB
recommendation or ruling to withdraw its prohibited subsidies within the meaning of
Article 4.7 of the SCM Agreement3
and that
the United States has not failed to comply with the DSB’s recommendations and
rulings, and the transition provisions of the AJCA are not inconsistent with
Article 4.7 of the SCM Agreement, for the simple reason that, as explained below,
there was no DSB recommendation or ruling under Article 4.7 to withdraw the
subsidy insofar as the ETI Act tax exclusion is concerned.4
1
US First Written Submission, para. 6.
EC First Written Submission, para. 55.
3
US First Written Submission, para. 2.
4
US First Written Submission, para. 10 (emphasis added).
2
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1.
The DSB adopted rulings concerning the ETI scheme
7.
The United States is rather playing with words in making this procedural objection. For one
thing, even if the DSB did not make a new recommendation, it certainly made rulings by adopting the
reports of the Panel and the Appellate Body containing findings to the effect that the ETI Act is
inconsistent with the SCM Agreement, the Agreement on Agriculture and the GATT 1994. These
rulings comprise in particular the findings set out in paragraph 9.1(a)-(d) of the Article 21.5 Panel
Report and upheld in paragraph 256 (b)-(e) of the Article 21.5 Appellate Body Report. If the reports
did not contain the necessary findings or recommendations, it would mean that the DSB achieved
nothing at its special meeting convened to adopt the reports which was held on 29 January 2002.5
8.
The United States does not contest that section 101 of the JOBS Act was adopted to comply
with these rulings.
2.
Article 4.7 of the SCM Agreement
9.
The US position quoted above also seems to erroneously assume that a recommendation
under Article 4.7 of the SCM Agreement specifically addressing the ETI Act, and additional to the
original recommendation under the same provision concerning the withdrawal of the FSC subsidy
scheme, is necessary in order for it to be under an obligation to withdraw the ETI subsidy scheme.
10.
This position misunderstands the function of the Article 21.5 proceedings. Such proceedings,
as noted by the United States elsewhere in its submission6, concern measures taken to comply with
recommendations and rulings.7 Thus, it logically follows that in the first Article 21.5 proceeding it
was sufficient for the Panel to find that, by promulgating the ETI Act, the United States has not
withdrawn its prohibited subsidy (in other words, that the United States had not complied with the
original recommendation to withdraw the prohibited subsidy).
11.
Precisely because a measure challenged in an Article 21.5 proceeding is "taken to comply"
with earlier recommendations and rulings, and because "compliance" is the focus of such proceeding,
a panel is not required to also make a new recommendation under Article 4.7 specifically concerned
with the measure "taken to comply" (although it will need to make findings concerning the
consistency of the new measure with the covered agreements).
12.
In the same way, if the measure under review in such a proceeding is found not to be
"consistent with a covered agreement", the defaulting Member is not entitled to a new deadline to
"withdraw the subsidy without delay" within the meaning of Article 4.7 of the SCM Agreement,
contrary to what the United States seems to suggest.8 Otherwise, the defaulting Member would be
rewarded for its continuing non-compliance. Therefore, a new recommendation would also not
perform any function additional to that performed by the one in the original proceeding.
13.
The Appellate Body confirmed this approach in its Report in the original Article 21.5
proceedings and, contrary to the US assumption,9 the fact that the Panel or the Appellate Body did not
5
WT/DSB/M/118, 18 February 2002.
US First Written Submission, para. 17.
7
Even though, as clarified by the Appellate Body in its Article 21.5 Report in Canada - Aircraft
(Article 21.5), a panel is not confined to examining the “measures taken to comply” from the perspective of the
claims, arguments and factual circumstances relating to the measure originally challenged, but may also
examine further claims which are pertinent to the “measure taken to comply” under review (Appellate Body
Report, Canada – Measures Affecting the Export of Civilian Aircraft – Recourse by Brazil to Article 21.5 of the
DSU, WT/DS70/AB/RW, adopted 4 August 2000 (“Canada - Aircraft – Article 21.5”), DSR 2000:IX, 4299, para.
41).
8
US First Written Submission, para. 16.
9
US First Written Submission, para. 15.
6
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make a new recommendation under Article 4.7 does not help the US case. First, as recalled in the EC
First Written Submission, the Appellate Body clearly upheld the Panel’s finding that the transition and
"grandfathering" clauses of the ETI Act do not conform with the original recommendation and
rulings.10 Moreover, the Appellate Body closely linked its findings on the ETI Act and the original
recommendation under Article 4.7 of the SCM Agreement, in the following terms:
257.
The Appellate Body recommends that the DSB request the United States to
bring the ETI measure, found in this Report, and in the Panel Report as modified by
this Report, to be inconsistent with its obligations under Article 3.1(a) of the SCM
Agreement, under Articles 3.3, 8 and 10.1 of the Agreement on Agriculture, and under
Article III:4 of the GATT 1994, into conformity with its obligations under those
Agreements, and that the DSB request the United States to implement fully the
recommendations and rulings of the DSB in US – FSC, made pursuant to Article 4.7
of the SCM Agreement.11
14.
Had a new recommendation under Article 4.7 been needed, the Appellate Body would not
have come to such conclusion. The reason why the Appellate Body did not come to a different
conclusion is that the findings on a measure "taken to comply" within the meaning of Article 21.5 of
the DSU and the recommendations and rulings of the DSB, the compliance with which is at issue, are
inextricably linked.12
15.
Furthermore, as recalled by the European Communities in its First Written Submission13, the
Appellate Body found that Article 4.7 of the SCM Agreement requires prohibited subsidies to be
withdrawn "without delay" (while it mandates panels to specify the time-period prescribed for the
withdrawal). The Appellate Body’s recognition that, by passing the ETI Act, the United States had
not withdrawn its prohibited subsidy, and thus had not complied with the recommendation and rulings
under Article 4.7 of the SCM Agreement contained in the original Panel Report, rules out that the
United States is authorized to keep the ETI scheme in place. If the US argument were correct, then
the partial repeal of the ETI scheme would represent an act of generosity vis-à-vis other WTO
Members which was not sufficiently publicised by the US authorities to their constituencies.
16.
In reality, the repeal of the ETI scheme has consistently been presented by the US legislator
as a necessary action to bring an end to a violation of US WTO obligations.14 The fact that the
United States itself has found that repeal of the ETI scheme is required in order to fulfil US treaty
obligations may be considered "subsequent practice" within the meaning of Article 31 of the Vienna
Convention on the Law of Treaties.15
17.
The United States also suggests that in commenting on the interim Panel Report in the first
Article 21.5 proceeding the European Community asked that the Panel make no recommendation.16 It
does so to explain the fact that the Article 21.5 Panel Report does not contain a new recommendation
under Article 4.7 of the SCM Agreement. In reality, the passage of the Article 21.5 Panel Report
referenced by the United States records that the European Communities pointed out that a new
10
Article 21.5 Appellate Body Report, paras. 230-231 and 256(f), referred to in EC First Written
Submission, para. 57 and footnote 27.
11
Article 21.5 Appellate Body Report, para. 257 (emphasis added).
12
See also Panel Report, Canada – Measures Affecting the Export of Civilian Aircraft – Recourse by
Brazil to Article 21.5 of the DSU, WT/DS70/RW, adopted 4 August 2000, as modified by the Appellate Body
Report, WT/DS70/AB/RW (Canada - Aircraft – Article 21.5), DSR 2000:IX, 4315, paras. 6.1 and 6.2.
13
EC First Written Submission, para. 29, quoting the Article 21.5 Appellate Body Report, para. 229.
14
See e.g. the background to the JOBS Act, as described in the Conference Report (Exhibit EC-3, p.
262).
15
Concluded at Vienna on 23 May 1969, United Nations Treaty Series, Vol. 1155, I-18232.
16
US First Written Submission, para. 14 and footnote 12, referring to para. 7.5 of the Article 21.5
Panel Report.
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recommendation under Article 19 of the DSU was not needed (and that the Panel followed this
approach, noting that several other earlier Panel reports also did so).17 The United States also
conveniently omits to recall that to the extent it felt this was required, the Appellate Body did make a
recommendation to the DSB that it request the United States to bring the ETI Act into conformity
with its obligations.18
18.
As a last remark, it should be recalled that panels are required to make the recommendations
which are necessary under Article 4.7 of the SCM Agreement19 and that panels and the Appellate
Body are required to make the recommendations which are necessary under Article 19 of the DSU, if
they have found a violation of Article 3 of the SCM Agreement or other "covered agreements"
respectively. These recommendations must thus be made irrespective of a specific request of the
complaining party.
C.
WHETHER SECTION 5 OF THE ETI ACT IS WITHIN THE PANEL’S TERMS OF
REFERENCE
19.
The other procedural argument brought forward by the United States is that section 5 of the
ETI Act does not fall within the Panel’s terms of reference. The reason for this position seems to be
that the United States considers the subsections of the JOBS Act expressly mentioned in a particular
part of the request for the establishment of the Panel20 to be the sole subject of litigation in this
proceeding.21
20.
The European Communities cannot accept the US approach, which is unduly reducing the
content of its request in this proceeding. To begin with, section 2 of its request for establishment of
the Panel only summarizes the text of the part of the JOBS Act which are pertinent to this panel
proceeding. However, the EC request for findings by the Panel is contained in section 3, which is
inextricably linked to section 2. Section 3 contains a clear reference to the original recommendation
under Article 4.7 of the SCM Agreement and to the findings made in the first Article 21.5 proceeding
in respect of the ETI Act. Amongst these are, as indicated above, findings that the ETI Act partly
keeps in force the FSC scheme through its "grandfathering" provision.
21.
In fact, elsewhere in its submission, the United States admits that Article 21.5 proceedings are
concerned with measures taken to comply with (earlier) recommendations and rulings. 22 As found by
the Panel and confirmed by the Appellate Body in the first Article 21.5 proceedings in this dispute,
the ETI Act did not achieve compliance with the recommendations and rulings in the original
proceedings, including the recommendation under Article 4.7 of the SCM Agreement.23 Quite to the
contrary, by passing the ETI Act the United States continued to violate a number of WTO provisions,
17
See e.g. Article 21.5 Panel Report, Australia - Subsidies Provided to Producers and Exporters of
Automotive Leather - Recourse to Article 21.5 of the DSU by the United States, WT/DS126/RW, adopted
20 March 2000; Article 21.5 Panel Report, Brazil – Export Financing Programme for Aircraft - Recourse By
Canada To Article 21.5 of the DSU, WT/DS46/RW, adopted 4 August 2000; Article 21.5 Panel Report, Canada
– Measures Affecting the Export of Civilian Aircraft, Recourse by Brazil to Article 21.5 of the DSU, adopted
4 August 2000, WT/DS70/RW), all quoted in the Article 21.5 Panel Report, footnote 44.
18
Article 21.5 Appellate Body Report, para. 257.
19
See also e.g. Panel Report, United States – Subsidies on Upland Cotton, WT/DS267/R, and Corr.1,
8 September 2004 (“US – Upland Cotton”), para. 8.3(b); Panel Report, Canada – Measures Affecting the Export
of Civilian Aircraft, WT/DS70/R, adopted 20 August 1999, as upheld by the Appellate Body Report,
WT/DS70/AB/R (“Canada - Aircraft”), DSR 1999:IV, 1443, para. 8.3; Panel Report, Korea – Measures affecting
trade in commercial vessels, WT/DS273/R, 7 March 2005 (“Korea – Vessels”), para. 8.4.
20
WT/DS108/29.
21
US First Written Submission, para. 20.
22
US First Written Submission, para. 17.
23
See in particular Article 21.5 Appellate Body Report, paras. 228-231 and the passages of the
Article 21.5 Panel Report referenced therein.
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and also the recommendation under Article 4.7 of the SCM Agreement to withdraw the FSC scheme
without delay. As a result, effective withdrawal of the FSC scheme under the SCM Agreement also
required withdrawal of the measure that (inter alia) maintained the FSC scheme in effect. The
European Communities is precisely complaining about the US failure to do so.24
22.
Article 21.5 proceedings concern not only what the defaulting Member has done, but also,
and primarily, what it has failed to do. They cover not only the question of whether what has been
done is consistent with the covered agreements. They also cover the question of whether measures
which ought to have been taken to comply exist.
23.
Since the United States has failed to take any action to repeal section 5 of the ETI Act, there
is no provision in the JOBS Act that the European Communities could have quoted in its request for
establishment of the Panel in connection with this failure. It was no more necessary to explicitly cite
section 5 of the ETI Act in the request than it would have been necessary to cite any other provision
of the ETI Act or the FSC legislation that remains partially applicable today contrary to the
obligations of the United States.
24.
Furthermore, the EC would recall that the fact that the ETI Act, including section 5 thereof, is
inconsistent with the obligations of the United States under the WTO is res iudicata between the
parties to this dispute.25 The United States has an obligation to withdraw it and does not contest that it
has not done so.
25.
Even assuming, quod non, that the only relevant part of the EC request for establishment of
the Panel is the one contained in section 2 thereof, that section also includes a general reference to
certain contracts which are kept in force by the JOBS Act. Section 2 of the request clearly indicates
that
the European Communities considers that Section 101 of the JOBS Act contains
provisions which allow US exporters to continue benefiting from the tax exemptions
already found to be WTO incompatible … (b) for an indefinite period with respect to
certain contracts.26
26.
The language quoted above covers both the contracts benefiting from the ETI scheme which
are expressly "grandfathered" by the JOBS Act and the "older" contracts benefiting from the FSC
scheme which were "grandfathered" by the ETI Act through section 5. The United States does not
contest that the JOBS Act allows section 5 of the ETI Act to remain in effect. And there is no doubt
that the FSC and ETI schemes were already "found to be WTO incompatible".
III.
CONCLUSION
27.
For the reasons above the European Communities maintains its request to the Panel and its
conclusions set out in its First Written Submission.
24
WT/DS108/29, p. 2.
EC First Written Submission, para. 67.
26
WT/DS108/29, p. 2 (emphasis added).
25
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ANNEX B-2
SECOND WRITTEN SUBMISSION OF THE
UNITED STATES
(16 June 2005)
Dear Mr. Chairman:
In our First Written Submission of 2 June 2005, in the dispute United States – Tax Treatment
for "Foreign Sales Corporations": Second Recourse to Article 21.5 of the DSU by the European
Communities (WT/DS108), the United States responded to the arguments of the European
Communities ("EC") set forth in its First Written Submission of 19 May 2005. Since then, there have
been no further arguments submitted by the EC for the United States to rebut. Therefore, this letter
constitutes the United States rebuttal submission. Of course, should the EC rebuttal submission
contain new arguments, the United States will respond to them at the 30 June 2005, meeting with the
Panel.
The United States is providing a copy of this submission directly to the EC, Australia, Brazil,
and China.